Legislature(2003 - 2004)

2004-02-27 Senate Journal

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2004-02-27                     Senate Journal                      Page 2314
SB 354                                                                                            
SENATE BILL NO. 354 BY THE SENATE RULES COMMITTEE                                                   
BY REQUEST OF THE GOVERNOR, entitled:                                                               
          "An Act relating to complaints filed with, and                                            
          investigations, hearings, and orders of, the State                                        
          Commission for Human Rights; making conforming                                            
          amendments; and providing for an effective date."                                         

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was read the first time and referred to the State Affairs and Judiciary                             
The following fiscal information was published today:                                               
 Fiscal Note No. 1, zero, Office of the Governor                                                    
Governor's transmittal letter dated February 25:                                                    
Dear President Therriault:                                                                          
Under the authority of article III, section 18, of the Alaska                                       
Constitution, I am transmitting a bill that would amend the                                         
investigation and procedure laws of the State Commission for Human                                  
Rights (commission). The bill would amend the investigation and                                     
hearing procedures to enhance efficiency and to give the commission                                 
more enforcement discretion to increase its effectiveness in combating                              
unlawful discrimination.                                                                            
The bill would add a new statutory provision, AS 18.80.112, to                                      
provide the staff of the commission with greater authority to evaluate                              
complaints of discrimination and to choose the complaints that it                                   
pursues to hearing before the commission. The purpose of the                                        
amendment is to reverse the Alaska Supreme Court's decision in                                      
Department of Fish and Game v. Meyer, 906 P.2d 1365 (Alaska                                         
1995), that a hearing is mandatory if a complaint is supported by                                   
substantial evidence. The court concluded that the state human rights                               
laws did not give the commission staff discretion to discontinue action                             
on a complaint after an investigator found substantial evidence of                                  
unlawful discrimination. Id., at 1373. The effect of this decision was to                           
require the commission to commit its resources to any complaint                                     
supported by substantial evidence without regard to such factors as the                             
weakness of the evidence, the strength of an employer's affirmative                                 
defenses, or the significance of the alleged violation. Providing the                               
commission with genuine prosecutorial discretion would allow the                                    
commission to commit its resources to complaints it determines merit                                
pursuit, based on such factors as, for example, the strength of the                                 
evidence, the severity of the alleged violation, an employer's history                              
before the commission, or the complaint's value in establishing                                     
precedent guiding future conduct.                                                                   

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The discretion of the staff of the commission would also be expanded                                
to allow it to compromise a claim for damages in the conciliation (or                               
prehearing) phase of the procedures. The bill would avoid conflicts                                 
between staff's exercise of its expanded discretion to compromise,                                  
dismiss, or pursue a complaint and the concerns of the victims of                                   
unlawful discrimination by allowing a complainant to opt out of                                     
commission procedures. A complainant may withdraw the complaint                                     
at any time before the executive director of the commission makes the                               
decision to go to hearing and, after withdrawal, pursue the claim                                   
independently of the commission in another forum.                                                   
The bill also would change the hearing procedures. These changes                                    
include requiring the commission to follow the procedures in the                                    
Administrative Procedure Act, AS 44.62.330 - 44.62.630, unless AS                                   
18.80 provides a different procedure. The bill would eliminate from                                 
AS 18.80 some duplicative procedural requirements that are addressed                                
in the Administrative Procedure Act, such as the admissibility of                                   
evidence and the requirement that testimony be under oath. Another                                  
change would be the addition of a provision similar to a motion for                                 
summary judgment in the civil rules of court to allow a summary                                     
decision on the law if the facts are not disputed. The reason for                                   
allowing a summary decision would be that it is a faster procedure                                  
than a hearing, and it would provide a sufficient opportunity to be                                 
heard on the legal issues when the facts are not in dispute.                                        
The bill would add a provision tying the rate of interest when the                                  
commission awards interest to the legal rate in AS 09.30.070 to bring                               
the commission into conformity with other administrative agencies                                   
and the courts. It would limit amendments to a complaint after a case                               
is referred for hearing to ensure that all changes are supported by                                 
substantial evidence and that a respondent has an opportunity to                                    
address all charges informally before being required to defend them in                              
a formal hearing. The bill would move the statute of limitations for                                
bringing a claim from regulation (6 AAC 30.230) to statute.                                         
Finally, the bill would amend AS 18.30.130, which addresses the                                     
authority of the commission to remedy unlawful discrimination, to                                   
establish that the appropriate remedy for unlawful employment                                       
discrimination normally would be to restore the actual benefit that was                             
deprived -- hiring, promotion, or reinstatement to a position. In the                               

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unusual case where the relationship is so poisoned that the employee                                
cannot return to work, the bill would allow an award of up to two                                   
years of compensation, minus the wages that the employee should be                                  
able to earn. Additionally, under the bill the commission would be                                  
able to order training regarding discriminatory practices.                                          
This bill, by increasing the commission's discretion in handling                                    
complaints, would enable the commission to allocate its diminishing                                 
resources to cases in which the commission could be the most                                        
effective in addressing and eliminating unlawful discrimination. By                                 
streamlining commission procedures, the bill would help contain costs                               
and ensure that the procedures are equitable to both complainants and                               
the persons, businesses, labor organizations, and employment agencies                               
charged before the commission with unlawful discrimination.                                         
I urge your prompt and favorable action on this bill.                                               
Sincerely yours,                                                                                    
Frank H. Murkowski